Cracking the Child Support Code: Understanding the Formula and Factors • Your Divorce Case
Navigating the Complex World of Child Support
In this episode of How to Split a Toaster, Seth and Pete dive deep into the often murky waters of child support, the C in the PEACE Process. With precise rules, high stakes, and emotions running even higher, understanding child support is crucial for anyone going through a divorce.
Unraveling the Intricacies of Child Support
In this installment of our season-long look called Your Divorce Case, Seth and Pete break down the complexities of child support, explaining that it has little to do with actual child expenses. Instead, the state uses a mathematical formula based on the combined net income of both parents to determine the amount of support needed. They discuss how factors such as the number of children, parenting time, and additional expenses like health insurance premiums and uncovered medical costs impact the calculation.
Questions we answer in this episode:
• How is child support calculated?
• What factors influence child support payments?
• Can the court deviate from the child support guidelines?
Key Takeaways:
• Child support is based on a formula, not actual child expenses.
• The percentage of financial responsibility for each parent is crucial.
• Regular recurring income, such as bonuses and vested stock options, counts towards child support calculations.
Seth and Pete's in-depth analysis of child support provides valuable insights for anyone navigating the complexities of divorce. By understanding the nuances of the guidelines, parents can better prepare for the financial aspects of co-parenting and ensure the well-being of their children post-divorce.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from True Story FM. Today we ask the age-old question, how do you keep your toaster in shoes?
Seth Nelson:
Welcome to the show everybody. I'm Seth Nelson, and as always, I'm here with my good friend Pete Wright. Today is Child Support Day. We're diving deep into the often murky waters of child support in Florida where the rules are precise, the stakes are high, and emotions run even higher. Welcome to the Toaster, Pete. Today, I'm going to treat you like you're the guest.
Pete Wright:
That was good. I feel really good about that. I was trying to go super dramatic on that intro. I wanted the emotions run high. We cue the music.
Seth Nelson:
Right. It was great. Pete writes all the intros and I mess them up.
Pete Wright:
Almost every week.
Seth Nelson:
We all have our role to play.
Pete Wright:
We all do. Seth, we're continuing our Your Divorce Case tour and this week on the curriculum is child support. I would love to know where you begin with child support because there's so much money.
Seth Nelson:
I'm super excited about this.
Pete Wright:
You're excited. Okay, good.
Seth Nelson:
The reason why I'm excited about this is because it is actually one of the most misunderstood and easily looked over areas of the piece; parenting plan, equitable distribution, alimony and child support, everything else. And here's what lawyers will tell you, "It's just a formula. The numbers are the numbers." And then the lawyers will also tell you in a mediation or something, "I went to law school, because I'm not good in math. That's why I didn't go to medical school." So yeah, considering four out of the five issues in a divorce deal with money, probably not the best thing to be saying to your clients. And you know me, Pete, Excel spreadsheets are my love language. I love this stuff.
Pete Wright:
Those are all other lawyers with low self-esteem, not Seth.
Seth Nelson:
That's right.
Pete Wright:
Here we go.
Seth Nelson:
That's right, that's right. Oh, here it is. I have a movie reference for you.
Pete Wright:
Oh, yeah. Okay.
Seth Nelson:
Okay.
Pete Wright:
All right.
Seth Nelson:
Talk about self-esteem. It comes from The Two Popes. Okay? And they're talking about how the pope who was taking over is from Argentina and he says, "The only way an Argentinian commits suicide is he climbs to the top of his ego and jumps off."
Pete Wright:
I'm going to tell you that's a great quote and a great pull from possibly the most obscure movie you could bring up on a divorce podcast.
Seth Nelson:
That's right. That's right. So we do annulments too, by the way. It was a Catholic movie, so I'm just throwing that out there.
Pete Wright:
Okay. All right.
Seth Nelson:
So here's the thing to understand about child support guidelines from the very get-go. It has almost nothing to do with child expenses.
Pete Wright:
Well see now, that's the first opportunity you've had to present me a statement of child support and you've already blown my mind. Isn't that the point is that it's all about child expenses?
Seth Nelson:
Yeah, I said almost no child expenses. And here's what I mean by that. All it is, is the great state of Florida, it's legislature coming up with a mathematical formula that was a bill that got signed by the governor into law that says if you make X number of dollars as a couple combined, and by dollars I mean net dollars after taxes and some other deductions that they give for child support purposes, then the state of Florida thinks that your child needs so much money in support. So by way of example, there's a whole table that says if you have a combined net income of $8,000 and now I'm going to make up this number, your child with one child, that child needs $1,000 worth of support.
Pete Wright:
Okay. Seems kind of arbitrary to me.
Seth Nelson:
Right, right. $8,000, one child, $1,000 worth of support, which would then lead you to believe if there was $8,000 of net income and you had two children, how much support do you think that state of Florida would say you need?
Pete Wright:
I would suggest it should be around $2,000.
Seth Nelson:
That would be a very reasonable suggestion, which would be wrong because the state would then say, well they need $1,375.
Pete Wright:
They do not. Are you serious?
Seth Nelson:
Yes. It is not a double. And the concept is, listen, when you're under one roof, it's one rent payment. It doesn't matter if you have a second child or a third child or a fourth child.
Pete Wright:
It's not like that other child's going to be eating $1,000 worth of groceries.
Seth Nelson:
Right. But now you're getting into specifics. We're going to get to that in a minute. So here's the thing. If you take that analysis that you did, which seems very reasonable, $8,000, one child, one grand; $8,000, two child, two grand; $8,000, eight child, they need $8,000 worth of support, you don't have any money left.
Pete Wright:
You don't have any money left. So instead we have a $1,000 child and a $375 child.
Seth Nelson:
That's right. Which we all love the second child more because he costs less. Right? So hand-me-downs cheaper. You can tell-
Pete Wright:
It's all about-
Seth Nelson:
... second child.
Pete Wright:
... second child.
Seth Nelson:
You can tell. So, okay, so that's the first thing is that it's just a made up number. It's a made up number by the great state of Florida. The second thing to realize is people will always ask, "How much child support am I going to get or how much do I have to pay?" So let's go back to the hypothetical $8,000 net incomes, one child, $1,000. The child support calculation says this child needs $1,000, but who pays whom and how much does Mom pay Dad, does Dad pay Mom?
Pete Wright:
Okay, so does this play into Florida's presumption of 50/50 timeshare? That it should just end up being equal?
Seth Nelson:
It could. Great question. So one of the things, when you have a mathematical formula, what are the inputs? In this hypothetical we already know because I've given it to us what the party's net income is combined $8,000. For this hypothetical, I'm going to start $4,000 for Mom, $4,000 for Dad, total of $8,000. Now we're going to go and we know that, so we now have net income of each party combined net income. We know number of children, one. We know the great state of Florida says $1,000.
Now, how many overnights does each parent get? We'll do the presumption of 50/50, which means, if this is where we stopped and we didn't do any of the other inputs and we ran the math, Mom would owe Dad $500, but Dad would owe Mom $500 because they both have the obligation to support that child. You with me?
Pete Wright:
Yeah.
Seth Nelson:
Now, so no child support would be exchanged. It would be zero because 500 minus 500 is zero.
Pete Wright:
Right.
Seth Nelson:
I'm telling you lawyers in court get this wrong and I have to explain it to judges all the time, just because it's a nuance in there and they see a number, but they just look at the bottom number. You got to look at all the numbers.
Pete Wright:
Now let's just say, Mom makes six grand, Dad makes two.
Seth Nelson:
There you go. Okay, so if Mom makes six grand, and I'm just going to do this math real quick, 2,000, right? So basically Mom has 33%, right? Dad has the remainder. You're going to take that $1,000 and Mom's going to owe $333, Dad's going to owe the remainder, and then when you do that math, Dad's going to be paying Mom some money.
Pete Wright:
Yes. The remainder of whatever the other 20% is to-
Seth Nelson:
That's right. The change. Okay.
Pete Wright:
Yeah.
Seth Nelson:
So we are going to put this in our show notes, a program that runs the child support guidelines that we use all the time. It's called Family Law Software.
Pete Wright:
Okay.
Seth Nelson:
They will have a free way to run your guidelines. I have a subscription for the firm and we can save it and make adjustments. You can run your own guidelines. So couple things to think about here. We haven't done all the other things that go under the guidelines. So let's go back to the 50/50; they each have $4,000. We all know that would be zero. But what happens if Mom pays health insurance premiums on behalf of the child of $100 a month? She's prepaying health insurance for the child, which is an expense that the child support guidelines care about and, therefore, Dad owes her 50 bucks because that's 50%. Now why did I get 50%? Because I have them both making equal incomes, $4,000 and $4,000 for a total of $8,000. They make 50% combination of the net.
Pete Wright:
So in the example where they make $2,000 and $6,000, one of them would be paying $33 and the other would be paying the rest.
Seth Nelson:
You got it. It's called percent of financial responsibility.
Pete Wright:
Okay.
Seth Nelson:
So that is in the guidelines. Also in the guidelines are uncovered medical expenses.
Pete Wright:
What are uncovered medical, like braces?
Seth Nelson:
Braces, co-pays, if you have a very sick child. But the problem is, Pete, how do you know how much those are every year? You don't. So what we typically do in a settlement and even in trial, we ask the court to divide the uncovered medical expenses on a pro rata basis based on the financial responsibility in the child support guidelines. So you have a $10 copay, if you want to go ask your co-parent for that $3 and 33 cents or the $5, if it's a 50/50 on percentage guidelines, you're allowed to do that.
This is a big practice point. When you see a parenting plan come over or a marital settlement agreement come over and it's talking about child support and they say, "Let's divide the uncovered medical expenses, 50/50," the law is percentage of financial responsibility pro rata by the child support guidelines. So if you are a lower income earner than your co-parent, you're going to want to say no to 50/50. If you're the higher income earner, you're going to want to say yes to 50/50.
Pete Wright:
Okay.
Seth Nelson:
Okay?
Pete Wright:
Yeah.
Seth Nelson:
You follow all that?
Pete Wright:
Yeah, I do. And it seems like you've just found a reason for us to fight.
Seth Nelson:
Well, people will try to fight about it, but what's really nice about Florida family law in this area, there's no fighting. The law is very clear and that's when the law is clear, there's no fighting. You're not getting over this percentage guidelines. There's always an exception to the rule, but they're hard to come by on this point.
Pete Wright:
That was my next question. What circumstances would cause the court to deviate from the guidelines?
Seth Nelson:
Well, it's funny you say that. The court is allowed to deviate plus or minus 5% of the presumptive guidelines without making any factual findings.
Pete Wright:
Oh, so we can just do it without checking receipts?
Seth Nelson:
That's correct on the actual guidelines, but when you go to the pro rata, you got to check the receipts. Okay? Now, if you want to deviate from the guidelines, you might deviate because you have a high income earner and a low income earner co-parent and you have a lot of uncovered medicals that are regularly occurring inconsistent, such as if you have...
Let's take my son for example. He was on growth hormone shots that were not covered under insurance. That was a regularly occurring, very expensive outlay that we knew was going to continue. So we didn't fight about it, but if we wanted to fight, let's just say my former spouse could say, "Look, it's Seth Nelson. He's a big shot attorney with a podcast making millions." Remember she'd have to prove this in court, Pete.
Pete Wright:
Yeah, right.
Seth Nelson:
Good luck to you. Okay, but therefore he should pay more than his percentage, right?
Pete Wright:
Yeah.
Seth Nelson:
Or I'm the one staying home caring for this child and I can't work, God forbid, I need more child support because I can't work and I can't pay my fair share because I really am caring for this child. So there's ways to deviate, okay? But if you're going to deviate in court, and this is a lot what happens on appeals, Judge Lucas would tell us, "Make sure the court makes their written findings." The trial court because when it gets to Judge Lucas in the second DCA on the appellate court, the Second District Court of Appeals is going to tell this trial court, "You didn't make your findings."
That's a big reason to send it back and you don't want to go back. Just get it right the first time. Now, I've made this really easy so far. I gave this a 50/50 on income, we had one child. What happens if you have a child from a previous marriage that you're paying child support for? How does that factor in? Do you think the court would be like, "So what? You've got a second child, it's not part of this relationship. It's not part of this case. I'm not taking it into consideration."
Pete Wright:
You're the one who's divorcing the second time.
Seth Nelson:
Yeah.
Pete Wright:
Or whatever.
Seth Nelson:
Or you've had a second child from another, a parent, another co-parent, two different moms, let's say. Should the court consider how much I'm paying in child support for child number one, when considering how much I pay for child number two?
Pete Wright:
All right, let just tell you a few things. Number one, the court should because that's reality. The reality is, it's not as if there is suddenly more money in the well just because there's a second child. So I think it behooves the court to be rational, unless they want to just keep going down the parents' not paying. But what I have learned from you is that that's not normally the case and since none of this discussion seems to sit on the foundation of best interests of the child, but rather a fancy Excel spreadsheet, I think I have no idea which way this is going to go.
Seth Nelson:
So you're not going to say, "I think it should do this." I know you're 60% today. I'll let you slide.
Pete Wright:
I'll say no, I'll say it. No, I'll say it. I think it should. I think it should because it's the good thing. I think it should take into account-
Seth Nelson:
So you're going to screw the second child. Okay, you've done parenting with my parents, I was the second child and I got screwed and my parents agreed with the great state of Florida and you are correct on this point. You do take into consideration how much child support this parent is paying for a previous child that they're paying child support for.
Pete Wright:
Okay.
Seth Nelson:
Okay?
Pete Wright:
I can see how that bums you out as the second child, but as a Florida divorce attorney, what is your general perspective?
Seth Nelson:
Well, I don't disagree with your analysis. It does bum me out for the second child because especially, well, it's a half sibling that they may never see. It's not like the same parent, but I get it. I'm with you. I think it should be considered, but you're definitely screwing the second child. And what happens if it's child number five? It keeps going.
Pete Wright:
But by then, you know what? Honestly, with so many kids in a very complicated parenting scenario, it seems like that's maybe the least of the reasons the child's already getting screwed.
Seth Nelson:
Yeah, that's true. It's a very good point. But you told me just to focus on child support today, Pete, and that's what I was doing.
Pete Wright:
I did. You understood the assignment. I did not.
Seth Nelson:
Okay, so now remember I said I made it easy, but I just told you what the net incomes were. So when people say, "It's just a formula. You have to get to a net income." And as we know, a net income is after you pay taxes, but in Florida family law you're allowed other deductions that might not line up with the federal tax code. It might, it might not. So by way of example, if you are paying health insurance for yourself, that gets to be a deduction to get to your net income. If you have mandatory union dues, that is a deduction for family law, child support in Florida from gross to net. And if you are paying into your 401k, because I'm responsible, I want to say for retirement, not a deduction. You don't get to pad your retirement and then say I'm paying less in child support.
Pete Wright:
Yeah, because it seems like any effort to reduce taxable income also reduces child support available to your child.
Seth Nelson:
Yes. In what game-
Pete Wright:
I can see why there'd be a flag on that.
Seth Nelson:
What game do you think people play? They'll lower their incomes going into court. So it could be easy when you say, "Well, I'm a W2 employee, just look at my pay stub. That's what I get paid." And look at your pay stub and at the end of the year you get a bonus. And what is someone going to say about their bonus if they want to lower their income?
Pete Wright:
Oh, dear. Well, I don't know the answer to that. Was it some other kind of income?
Seth Nelson:
No, it's still income. It's a bonus, but they're going to say, "It's not guaranteed."
Pete Wright:
Oh yeah, of course, not guaranteed income.
Seth Nelson:
Right. That's what a bonus is. It's not guaranteed income. The state of Florida doesn't care. If it's regular reoccurring, that's the key. Regular reoccurring income. So if you get a bonus every year, and one year it's $1,000 and the next year it's $3,000, the next year it's $2,000. That court might land at two grand. Right?
Pete Wright:
Okay. Yeah.
Seth Nelson:
Then there's all sorts of case law. Remember case law defines the statutes and explains them. There was a case about a football player who got a signing bonus. Signing bonuses are one time, they're not regular reoccurring, but there was testimony that the only reason he got a signing bonus, Pete, is because NFL player, because they were trying to stay under the salary cap and therefore the team didn't want to give him a regular paycheck over time because they had to have salary cap discussions to run their business and the court deemed it as income, not a signing bonus.
Pete Wright:
My God. Everybody's got a game, baby. Everybody's got a game.
Seth Nelson:
So what's regular reoccurring income? If you get an inheritance, that's not going to be regular reoccurring income. Signing bonuses typically are not regular reoccurring. What about income that you get because you get given stock from the company that you're with and you get it every year, but it vests over time and when it vests you have to pay taxes on it, but you just hold it in the company. That's income.
Pete Wright:
Once it vests, it's income?
Seth Nelson:
Once it vests, it's income.
Pete Wright:
Because technically it's at that point liquid.
Seth Nelson:
It's liquid, it's a taxable event. So that's one of the keys I look for. Is it a taxable event? Is it income? Right? So you see how the word income, which is very, very broad, how do you define that and how do you add that into the calculation and is that income then regular and reoccurring. Okay? How do you handle severance packages?
Pete Wright:
That seems really tricky. I can see both ways. On one hand, a severance package is designed to allow you to live while you are unemployed.
Seth Nelson:
Right.
Pete Wright:
Is it just income?
Seth Nelson:
Well, it really depends. The case law. It goes a little both ways on it, but also the case law will explain, "Look at what the company did." If the company says, "You worked here for 10 years and for every year we're going to give you a month's worth of salary to make up for you finding other employment," so that you are going to be having a steady salary and then they pay the salary out one month at a time for 10 months, regular reoccurring.
Pete Wright:
Sure feels like income.
Seth Nelson:
What about if they just give you the 10 months upfront but their paperwork says, "I'm doing it to pay you for 10 months." Compared to, "We just gave him a number and we had him sign a release that he couldn't sue us."
Pete Wright:
Okay. I don't know who to judge here, but it does feel like that's going to be looked at differently than regular and reoccurring.
Seth Nelson:
Right because I can state these hypotheticals to take away the regular reoccurring. And that's why when people say, "It's just a formula," you're really missing the boat. So understanding the nuances and talking to a lawyer about what is income generally, what specific information, we'll call them facts, but you know I like to use the term facts as in we're in court and a judge believes it and it proves a point that you're trying to make to prove your case, but what information do you have? "I have information that my former spouse got a signing bonus. I have information got a severance package. I have information that he has these stock options. I have information that he gets bonuses every single year." Or how about this one? UPS driver, FedEx driver, they work overtime all the time, especially during the holidays. Then they go to court and say, "Judge, I'm not going to be able to work as much over time because now I'm going to have my kids 50% of the time." How do you deal with that? He's had overtime every single year.
Pete Wright:
Which was regular and recurring.
Seth Nelson:
That's right. This guy's been working UPS through college, gets a job, he's driving the truck, it's great company to work for. I had college buddies that did it, put them through college and they worked for that company till the day they passed. I had a friend who died young, but then you get divorced and you're like, "I can't work late because I have to pick up my kids and I went to UPS and they're going to keep me on, but I'm going to lose my overtime."
Pete Wright:
Overtime, which you can calculate that. You can calculate that potential loss.
Seth Nelson:
That's right.
Pete Wright:
Okay, so how do you handle it?
Seth Nelson:
Well, it depends what side I'm on. That's because I'm a lawyer, right? I mean let's be honest about it. So I'm going to go to court and I'm going to argue, "Judge, it's not regularly occurring anymore. It was, but things change and they're changed because he's spending more time with the children." I think that's a reasonable thing. Now if he doesn't do that, the judge says, "Nope. As of now he got it. It's Christmas, boom, it's December 28th. We're trying the case. He's been working all his overtime. I'm going to tap him for it."
But two years from now, for two straight years or a year later, he doesn't have the overtime. And you go back to court, "Judge, my salary's dropped. I don't have overtime." They're going to argue you did it voluntarily. And I'm going to be like, "Yeah Judge, he did because he wanted to spend time with his kids."
Pete Wright:
To be with his kid.
Seth Nelson:
So if you want to tap him on that and say he is wrong, fine, but this is also a court of equity and we'll take that up to the appellate court and see what-
Pete Wright:
Can we dive into these other changes in circumstances?
Seth Nelson:
Yeah.
Pete Wright:
But what does it take to prove a change in circumstance like this? You just described one. What are some other changes in circumstances that would affect the child support?
Seth Nelson:
If your income changes.
Pete Wright:
Either way?
Seth Nelson:
Either way, up or down. Up or down. Child support is almost always modifiable.
Pete Wright:
Okay. You have to go to court to do it. Right? It's not like this table, this magical table you brought up, it's not like a sliding scale. This year my taxable income went up, so now I'm paying more.
Seth Nelson:
You can go back every year because it's been more than six months. You can't be on a commission basis and be like, "I just didn't hit my numbers in February. My income went down. Let me go to court." And then you hit them in March. It's got to be regular reoccurring. So six months, call it, just as a kind of mile marker there.
Now, income goes up, income goes down, lose your job, lose health insurance. The other parent picks up the health insurance. That's going to be a change. So if it's changes by 5% or 50 bucks at the bottom, that's called a substantial change in circumstance. So you can actually do the math. Here's the thing about changing child support. It's usually not worth going back to court for.
Pete Wright:
By that you mean just change your payments.
Seth Nelson:
Because the attorney's fees.
Pete Wright:
Are going to kill you.
Seth Nelson:
Right. They're going to eat it up. So when someone comes in and says, "We're not getting bonuses anymore, they restructured. I'm down 30 G'S." And I run it. I'm like, "Yeah, you were paying $1,000. You should be paying $700 now." I said, "$300 a month, do the math, right? For 12 months, that's $3,600. My retainer is going to be $5,000."
Pete Wright:
That's a very short conversation.
Seth Nelson:
Right. But then they say, "But my kid's 10. I've got eight more years." I'm like, "Okay, well times it by eight and that's assuming you are never going to make any more money. You're stuck at this. Right? $28,800. If we're going to trial on this, it's a half day of trial," and I'll just use a round number, 500 bucks an hour for four hours. That's $2,000. I already charged you five. We got to prep it. Then they're going to take your deposition, we're going to take their deposition, we're going to order the deposition transcript, we're going to do all the disc...
Pete Wright:
Yeah. It doesn't take long to knock that 28,000 out of the park.
Seth Nelson:
Yeah. So make a wise decision, call the lawyer, have them run guidelines quickly for you maybe as a courtesy and just talk it through. But it's always better just to try to cut back somewhere else because hopefully, you'll make more money.
Pete Wright:
How does the state of Florida handle child support enforcement?
Seth Nelson:
Two ways. One, if you're owed child support, the state of Florida will represent you for free. It's called DOR. And what happens is the state attorney has a whole department that will do child support enforcement. In my view, it can be very difficult to navigate, especially for people who don't have the funds to hire a lawyer. Also, if the Department of Revenue, that's what DOR stands for, is involved in the case, it can get tricky. Once you're in the system, it's hard to get out.
So sometimes you can have an agreement and even an order the circuit court in the family law court, but DOR might not have to abide by that order, did they do the order right, was Department of Revenue notified that they were supposed to be involved in the case? There's a lot of issues that can go on there, but if you are owed child support, go see the Department of Revenue, they will represent you. Okay. If you're the person that owes it, the Department is not going to represent you.
Pete Wright:
Okay.
Seth Nelson:
They're not about that. They're about collecting the money.
Pete Wright:
Yeah. Right.
Seth Nelson:
So I'd advise you to get counsel and work through that. And it's an administrative process. So you're in front of a hearing officer, not a judge.
Pete Wright:
Okay.
Seth Nelson:
Or you can go get a lawyer and go back in front of your judge or they might send it to a general magistrate depending on the local rules and you can try and enforce it that way. Couple things about child support. Under federal law, it is not dischargeable in bankruptcy. You owe it. You owe it. You're not-
Pete Wright:
Because the child-
Seth Nelson:
... bankruptcy.
Pete Wright:
The child is not dischargeable in bankruptcy.
Seth Nelson:
That's correct. Also, child support is the right of the child, not of the parent. Pete, if you have a right, am I allowed to waive that right for you?
Pete Wright:
No, you are not.
Seth Nelson:
Okay.
Pete Wright:
As of today-
Seth Nelson:
The answer is no because you revoked the power of attorney you gave me. Thank you very much. You didn't know about the power of attorney, but I can really copy that signature.
Pete Wright:
I feel like we should have had a different conversation.
Seth Nelson:
A parent cannot waive the right to child support. So even if two parents are getting along and they say, "I don't need child support, I'm good." The state of Florida, the judge can be like, "Nope, you got to pay it."
Pete Wright:
And put it in the kid's bank account if you really don't need it.
Seth Nelson:
And there's clever workarounds that some lawyers might use. They will rename nameless. But you might say the parties agree that Dad owes Mom $1,000 a month in child support or $300 a month in child support, but instead of paying it, Mom agrees that the father's paying that $1,000 or $300 a month directly for the benefit of the child. And, therefore, she will not accept it at this point, but at any time in the future, if they want to exchange child support, they may. And a judge might sign off on that because it's going for the benefit of the child. Okay?
Pete Wright:
Which is sort of the first time that we've talked about the benefit of the child specifically.
Seth Nelson:
That's right. But it's financial benefit, not best interest. Right? Now you mentioned something earlier like, "Hey, what are substantial change in circumstances? Should we have to go back to court?" Let's say you get a raise and it doubles your income and you just stay quiet about it. There's no obligation for you to go tell your former spouse, "Hey, I got a raise. I doubled my income. I owe you more child support." It's the right thing to do. Doesn't mean you have to do it. And she gets wind of it, but she gets wind of it two years later and she files for a modification of child support and she goes to court and says, "Judge, the guy got a raise two years ago, doubling his income. I want to modify child support. I want to go back two years."
Pete Wright:
Two years.
Seth Nelson:
Judge says, "Sorry, I'm not allowed to. You can only go back to the date that you filed."
Pete Wright:
And she just filed?
Seth Nelson:
And she just filed. She just found out, just got wind of it.
Pete Wright:
That's just like a blooming onion of bad juju going on in that example.
Seth Nelson:
Right. But in a paternity case, when you file for paternity, you can go back for child support for two years, but you can't do it in a modification of child support. Doesn't add up.
Pete Wright:
What's going on with the great state of Florida, Seth.
Seth Nelson:
There's a lot of things going on with the great state of Florida.
Pete Wright:
Okay.
Seth Nelson:
We only got 40 minutes on the podcast per the one who shall not be heard from, Andy.
Pete Wright:
Right, right.
Seth Nelson:
So the question then becomes, if you're doing a modification or if you are doing an enforcement, how does the court even know?
Pete Wright:
That was the next question. I know how busy the judges are. They're not going to be sitting around watching.
Seth Nelson:
They're only going to know just like any other problems that you have with people and you want to bring it before the court, you have to file your petition or a modification petition or petition for child support, whatever it's called, and then you have to serve the other party. You have to have them answer and it's just like a whole new mini case, but just on child support.
Pete Wright:
So really, I mean, like everything else, the court and equity counts on the other spouse doing the right thing for the child. If they find out that there's a change in circumstance, file the change in circumstance.
Seth Nelson:
That's right. That's right. Now, talk to your lawyer and say, "Let's just assume his income doubled and see what it does for the child support." Because it's not dollar for dollar. And I always encourage people to try to work these things out such as, "Look, it's my understanding that your income doubled. I really appreciate everything you're doing for the children. I know that you're paying more for a private school now. I know you're doing this. My struggle is I'm still a high school English teacher. My income isn't going up and they're doing all this amazing things at your house and I can't really provide the same over here and I'm not asking to provide the same. Can we just make an agreement where you give me 400 bucks more a month for the kids and I'm spending on them? You know that, right?"
You try to work out something because otherwise they say, "No, I'm not doing that." You're like, "Okay, that's fine. I'm going to go sue you for it. I'm going to ask for my attorney's fees because you're making way more money than I am." So then you have the whole, well now attorney's fees starts getting in the way of getting things settled. Right?
Pete Wright:
Carrot stick.
Seth Nelson:
That's right. That's right. Questions on any of that so far?
Pete Wright:
No, I don't think so. I think we've hit my big points, enforcement equity. We talked a little bit about unexpected expenses, I don't think we mentioned things like emergency surgeries, appendicitis, got to rush to the hospital.
Seth Nelson:
Done. It's uncovered medical. You out kick your coverage on your insurance.
Pete Wright:
Okay.
Seth Nelson:
What about extracurriculars?
Pete Wright:
Soccer, tutors?
Seth Nelson:
That's right. That's right. So to my knowledge, and if any lawyer out there, please correct me if I'm wrong. Pete would love that. There's no case law that says how you split up extracurriculars. So literally I've gone to court and said, "Judge, extracurriculars. It should be just like uncovered medicals. It should be pro rata. That seems fair, right, Judge?" "Mr. Nelson, I'm going to do it 50/50." Okay? "Your Honor, I'm down the hall." "It should be 50/50 on extracurriculars." And I'm making my argument and I'm like, I just lost this in the other courtroom. I'm going to win it here. "Mr. Nelson, I'm going pro rata."
Pete Wright:
Pro rata.
Seth Nelson:
Right? And then you have to agree to the extracurriculars, but that gets a little bit outside of child support guidelines, but sometimes they'll dovetail with this pro rata. Okay? Any other questions that you can think of?
Pete Wright:
We do have a question that has come in. And do remarriages end up affecting things? Does the new spouse's income play into these calculations? So now we're answering questions around things like co-mingled finances. What about when they have other kids?
Seth Nelson:
Yeah. Okay. Couple questions. These are great questions coming in, so thank you to our listeners. But a new spouse's income has absolutely nothing to do with this. Nothing to do. In fact, there's case law that says a new spouse's income, you can't even find out what it is. It is confidential. There's always exception to the rules. I just went to court on this, I think, a week or two ago. So that raises the question, what happens when you file joint tax returns with your new spouse? I get to go in and redact the new spouse's information.
Pete Wright:
So nobody gets to find it.
Seth Nelson:
Gives you an incomplete tax return. Right? It makes it really hard. So here is a potential solution. It can really only necessarily not only be by agreement, but I just came up with this not too long ago and I've done it in the past and it seemed to work. I've had my clients go to their accountant and say, "Run my taxes like I'm filing married single." So then it's my client's information only and see if I can get an agreement from the other side that we're going to use that as income, which is a more clear picture than redacting a jointly filed return.
Pete Wright:
Okay. That makes total sense. And leads to the follow-up question. What if the former spouse decides not to work because their new spouse makes all the money and then you're filing married or filing single, but it shows no income.
Seth Nelson:
Yeah. You could file married, separate with no income. You are now voluntarily underemployed. And I would go to court and I've had this case before many times where I'm like, "Judge, that's great. She doesn't have to work. New spouse. We're not asking for his income. We're just saying this is what she was earning. She could earn this money, therefore she should be imputed the income."
Pete Wright:
Okay, so we're just going to assume that she has that much money to pay.
Seth Nelson:
That's right. That's right. It's called imputation of income. And when people try to say they're underemployed or they're unemployed, the court can act like they have the money if you meet the certain criteria to prove that in court. These are all great questions.
Pete Wright:
That's a great question. Yeah. Are these kinds of imputed calculations common when you run into this often?
Seth Nelson:
Yeah. We do them more and more when people are playing the game. So either we'll prove that they should be making more or they could be making more. But you have to get an expert and an expert costs money. So there's ways to get minimum wage imputed without an expert. It doesn't really move the needle that much. There's other ways that you can get a median income imputed if they didn't give any financial information without an expert. So there's always a little nuances and exceptions to the rules. But yeah, and here's the other thing. We're talking new spouse. New spouse brings new kids, doesn't matter.
Pete Wright:
They don't have anything to do with it, just like the new spouse doesn't.
Seth Nelson:
That's correct. Doesn't matter. "But I'm staying home to care for my baby and when I was married to him, I stayed home to care for the babies." It doesn't matter.
Pete Wright:
Doesn't matter. Okay.
Seth Nelson:
Yeah. Great questions.
Pete Wright:
Those are some great questions. Yeah. Anything else we missed?
Seth Nelson:
A couple things you should definitely know when you're going child support is how many children you have. Don't get that question wrong.
Pete Wright:
Oh.
Seth Nelson:
Okay.
Pete Wright:
The equivalent of spelling your name right on the SAT. I think that's the equivalent.
Seth Nelson:
You had to bring up that issue. You know about that with me, don't you? Thank you.
Pete Wright:
Great questions. Keep them coming. We're going to hang it up, but you know where you can go ask those questions. If you're listening to this after the live stream, you can ask these questions at howtosplitatoaster.com. Just go there, there's a form, you can fill it out, you can submit it, it'll come to us, we'll ask it in an upcoming show and get Seth to weigh in. Thank you everybody so much for downloading, listening to this show. Next week, Seth-
Seth Nelson:
I forgot one thing.
Pete Wright:
You did?
Seth Nelson:
Yeah, I meant to say it.
Pete Wright:
What?
Seth Nelson:
Alimony.
Pete Wright:
What about it?
Seth Nelson:
Is alimony income or is it a deduction?
Pete Wright:
Oh no, it can't be income. It can't be income.
Seth Nelson:
It is income to the person receiving alimony for child support purposes. It's a deduction for the person paying for child support purposes because if I make $10,000 and I have to pay two in alimony, so now I only have eight, she has two. However, that's not the law on your federal tax return. It is not a deduction for federal taxes. It's only a deduction that I'm aware of in Florida child support calculations.
Pete Wright:
Wow.
Seth Nelson:
Check your local jurisdiction.
Pete Wright:
Check your local jurisdiction.
Seth Nelson:
Thank you for letting me sneak that one in.
Pete Wright:
You're so welcome. I'm not going to tease an upcoming episode because I know our dear, who shall not be named, is working very hard to lock in the next couple of guests. And so anyway, just know it's going to be great. Whatever it is, it's going to be amazing. We're very excited about it and we're continuing-
Seth Nelson:
So what you just said is Andy's not very organized. He doesn't have it all set.
Pete Wright:
You want do this in public. All right, that's fine. It's because you're having construction on your firm and you've thrown our schedule into chaos. This one's not Andy's fault. This one's on you.
Seth Nelson:
I'm going to debate that after the show with Mr. Andy.
Pete Wright:
I can't wait. I'm going to leave my recorder on. Thank you everybody for hanging out with us today. We sure appreciate your time and attention. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you next time right here on How to Split a Toaster, a divorce podcast about saving your relationships.
Outro:
How to Split A Toaster is part of the True Story FM Podcast Network, produced by Andy Nelson. Music by T. Bless and the professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce and Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.
